STATE OF TASMANIA v NEIL ARMSTRONG LANGI NAUFAHU 16 DECEMBER 2019
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant has pleaded guilty to one count of assault committed in the early hours of the morning of Sunday, 5 May 2019. At the time, the defendant and the complainant, Mr Fra, were not known to each other. The relevant events are as follows. The defendant and two other men were standing in the middle of the Parliament House car park. The complainant was walking towards Salamanca Place through the car park, and as he walked passed the group, the defendant approached him. He said something to the complainant and the complainant produced his wallet. The defendant took hold of it and some items fell out. The defendant picked something up, put it in the wallet and placed the wallet in the complainant’s back trouser pocket. In an apparent attempt to pacify the defendant, the complainant hugged him and continued to walk towards Salamanca Place. The defendant followed closely behind. After a few steps, the defendant punched the complainant to the right side of the head, causing the complainant to fall quickly to the ground. While he lay there motionless, the defendant kicked him twice and punched him again to the head. As the complainant tried to get up, the defendant punched him again and kicked him to the head. The defendant and the two other males walked away and went into Murray Street. The complainant was on the ground for a short time attempting to get up. Eventually he got to his feet and left the area. He caught a bus home. When he arrived, his mother called an ambulance and he was taken to the hospital. The incident was captured by a CCTV camera that was being manually operated. The camera operator telephoned police and the defendant and two males were intercepted not far from the scene. The defendant was arrested and taken to the police station where he was detained until he was sober. Later that afternoon he was interviewed. He said he recalled walking from a nightclub, after which he blacked out before remembering police meeting him. He said he did not remember anything before then, explaining that he had been drinking during the evening, first in the northern suburbs, then at a party in North Hobart, and then at a nightclub on the waterfront. He said he “drank heaps”. When shown the CCTV footage, he acknowledged it was him and said he still did not remember the incident. He called himself a “dickhead” and “stupid”. He said he felt sorry for the complainant. He agreed that the complainant was not threatening him in any way and that he, the defendant, was the bigger man. He said he was sorry for what he had done. He spent one night in custody before being released. The complainant received a large cut to his upper lip, and bruising to his face and head. He was treated for soft tissue facial injuries and was released from hospital after 24 hours. He suffered severe concussion syndrome for a number of weeks, including confusion, dizziness, fatigue and memory loss. I have a victim impact statement from Mr Fra. He describes the injuries he suffered. He said he had significant pain and discomfort for two weeks after the incident. He has managed to make a full recovery and realises he was very fortunate after seeing what happened on the CCTV footage. He has little recollection of the attack but he has some dreams where he sees himself at the scene of the assault. He says he is much more apprehensive now when he goes out alone and at times he has been paranoid when he sees groups of people in public places. His mother is now more apprehensive about his safety. The defendant’s counsel submitted that I could not be satisfied that the defendant was responsible for the concussion. This was because the complainant, when leaving the area, fell down some steps and hit his head. That, though, raises the causation issue of whether the complainant would have fallen but for the effects of being kicked and punched. Having viewed the CCTV footage, it is clear that the complainant was a little unsteady on his feet before the assault, whereas afterwards he was plainly struggling to stay upright and move forward. All in all, I am satisfied that the assault caused the concussion.
The defendant is now 31 years old; 30 at the time. He has no recorded history of offending. I have the benefit of submissions of his counsel and a psychological report dated 3 December 2019 from Mr Damian Minehan. The defendant’s relevant personal circumstances are as follows. He was born and raised in Tonga, the second oldest of a family of 9 children. He had a difficult upbringing in financial, mental and physical terms. There was conflict and violence in his community, with his father being involved in some of this. The defendant lost part of his ear when assaulted at the age of 18 or 19. He was also shot in the hand on one occasion, as well as being cut to the leg with a machete. He was forced out of the family home when 21 years old. Notwithstanding these things, he did relatively well at school and obtained tertiary qualifications in hospitality and tourism. In 2009, in Tonga, he met a woman who was an Australian resident. A relationship commenced and they married in December 2009. In early 2010 they had a son. Up to 2017 when the defendant obtained a partner visa enabling him to live in Australia, he travelled between the two countries. The relationship was a problematic one from an early time. The defendant reports threats of having his visa cancelled, false reports of violence and irresponsible financial decisions. Following the grant of the visa the defendant has worked at Incat as a welder. That employment was suspended following this charge, and the defendant is now experiencing financial difficulties. I have a letter from the defendant’s supervisor saying he has found the defendant to be reliable and respectful and is well regarded. Depending on the defendant’s ultimate fate as to his entitlement to remain in Australia, it seems this employment will be available to him. That is a matter to which I will return. I am told that the offence was committed in the background of the final throes of the relationship breakdown. During the course of the evening the defendant and his wife were in frequent contact. Emotions were running high. The defendant drank far too much, binge drinking being something to which he had been prone in the past. He felt both angry and sad. Having no memory of the incident, he is not able to offer any real explanation for his behaviour. He has an impression that the complainant said something offensive to him but accepts that he may be wrong about that. Through counsel he apologised to the complainant. I am told that he is genuinely remorseful and this is evidenced by his early plea to the charge as it was ultimately formulated. In September 2019, the defendant’s father died suddenly at the age of 52. This has caused the defendant very significant grief. Depressive symptoms increased and he has suffered physical difficulties such as nausea. Mr Minehan says the defendant has no signs or symptoms of a psychotic illness, nor symptoms of post-traumatic stress disorder or personality disorder. He states that the offence arose from background factors including early exposure to violence, as well as proximal factors including a deteriorating relationship, relationship conflict in the hours before the offence and a high level of intoxication. These things, along with his emotional state of sadness and anger when he began drinking, have, in Mr Minehan’s opinion, contributed to the offending. As to his current status in the country, he is at risk of deportation following visa cancellation under s 116(1)(e) of the Migration Act 1958 (Cth), on the basis that his presence in the country may be or might be a risk to the health, safety or good order of the community. Additionally, his visa may be cancelled under s 501(7)(c) of that Act if he is sentenced to a term of imprisonment of 12 months or more. The risk of deportation is a mitigatory factor but the weight to be attributed to it depends on the degree of likelihood of it happening – something very difficult to assess – and the nature and seriousness of the offending along with other relevant sentencing factors. Looking at it in isolation, I take into account that there is a risk of some substance of deportation under s 116.
This case falls into the category of drunken, gratuitous, and unprovoked violence in and around licensed venues in the early hours of the morning. That is a matter of community concern. All unlawful violence is unacceptable and needs to be deterred. Fortunately, the complainant has no lasting physical effects of the attack, but no doubt there is some ongoing emotional trauma. General deterrence and denunciation are important factors. At the same time, the defendant has no recorded history of violence. I take into account the plea of guilty and the personal circumstances of the defendant as providing context for what happened. There are also his present personal circumstances to be taken into account. In particular, of course there is some risk of deportation arising from the commission of the offence. I have looked at a number of sentences for what I see to be comparable offending, and I take the view that the penalty can be properly made less than the statutory mark of 12 months’ imprisonment, without any artificiality. However, there remains the operation of s 116.
Mr Naufahu, I have set out what I see to be the relevant considerations in your case. What you did was disgraceful and cowardly. It was fraught with risk and it is fortunate the complainant did not suffer more injuries. All in all, I have come to the view that in the circumstances no further immediate imprisonment is necessary. You are convicted and sentenced to 10 months’ imprisonment to commence on 8 December 2019 to take into account all of the time you have spent in custody. The balance from today is suspended on condition you commit no offence punishable by imprisonment for a period of two years. In addition, I make a community corrections order for a period of 18 months during which you must complete 160 hours of community service. I order that you report to a probation officer at 114 Bathurst Street Hobart by 5pm tomorrow, 17 December 2019.